Love, Loyalty and the Louisiana Civil Code: Rules, Standards and Hybrid Discretion in a Mixed Jurisdiction
77 Pages Posted: 22 Aug 2012 Last revised: 6 Sep 2012
Date Written: August 21, 2012
This article examines the design of legal directives found in and surrounding the Louisiana Civil Code through the prism of the classic rules versus standards debate. The Preliminary Title portion of the article introduces the vocabulary, descriptions and justifications typically displayed in jurisprudential debates over the propriety of rules and standards. Books One, Two and Three of the article analyze the extent to which several significant legal regimes in the Louisiana Civil Code — regimes that are likely to affect individuals in moments of personal crisis, when they enter into and exit from intimate personal relationships and when their love and loyalty to one another and to other intimate associates is most severely tested — have incorporated open textured standards as a primary form of rule design, have resisted discretionary remedialism by remaining tethered to relatively crystalline rules or have produced models of hybrid discretion.
Although the author originally expected to discover that Louisiana private law had largely embraced discretionary decision making within the realm of the Civil Code, punctuated with occasional moments of discretion skepticism, just as Niall Whitty has observed occurring in Scotland, the article’s analysis reveals that Louisiana has not evolved so decisively in the direction of standard based decision making models. Indeed, in the particular areas of private law examined (family law, co-ownership, and the inter-relationship between forced heirship and undue influence claims challenging wills), the author finds that Louisiana’s private legal order has only been partially transformed by the general trend toward discretionary remedialism that scholars like Whitty have observed occurring in other legal regimes. The article concludes by pointing to a number of additional concerns that should inform further scholarship examining whether Louisiana has assembled the proper mix of rules and standards.
Keywords: rules versus standards, private law rule design, family law, co-ownership, undue influence, forced heirship, Louisiana Civil Code
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